NCVLI News 5th Ed

Protecting, Enforcing and Advancing Victims’ Rights

NCVLI News

Lewis & Clark Law School

NATIONAL CRIME VICTIM LAW INSTITUTE

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MESSAGE FROM THE DIRECTOR NCVLI News is a biannual publication of the National Crime Victim Law Institute. Contact NCVLI staff at: NCVLI Lewis & Clark Law School 10015 SW Terwilliger Blvd. Portland, OR 97219 Tel: 503.768.6819 Fax: 503.768.6255 ncvli@lclark.edu www.ncvli.org

Editorial Content:

Prof. Douglas E. Beloof

by Professor Doug Beloof

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his is an exciting time in the emerging field of crime victim law. A time when one excellent opinion can set a precedent that other courts follow; when one new statute can provide a model that other legislatures emulate. A time when each one of you can make a tremendous contribution to the future of victims’ rights by complying with, advocating for, or defending those rights. This newsletter is a tribute to the power of these individual moments. Take the case of Payne v. Tennessee, brought before the Supreme Court just four years after the Court had ruled in n Booth v. Marylandd that victim impact statements were unconstitutional. Justice Scalia criticized d Booth in his Payne concurrence, stating: “Booth’s stunning ipse dixit [because we said so], that a crime’s unanticipated consequences must be deemed irrelevant to the sentence . . . conflicts with a public sense of justice keen enough that it has found voice in a nationwide victims’ rights’ movement.” Payne not only legitimized the role of the victim in sentencing, it did so with language that is profoundly useful to establishing victim laws in the states: “The states remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs.” Moreover, Payne set the standard for the status of the victim in the criminal justice system by opining that victim impact “is designed to show . . . each victim’s ‘uniqueness as an individual human being. . . .’” This one case will have enduring influence on victim law in all jurisdictions. This case and other powerful precedents are discussed in the article entitled Developing Victims’ Rights Law: A Study of Precedent and Dicta. Similarly, one statute can have tremendous impact on victims’ rights. The one-year-old federal Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, establishes appellate review and remedy of unprecedented scope. Review is achieved by mandatory mandamus. That is to say, victims have a right to appellate court review of rights violations occurring in the trial court. The remedy, absent a verdict at trial or limitations imposed by double jeopardy, is to void the judicial decision below and rehear the issue—this time complying with victims’ rights. The CVRA provides real, enforceable rights. In so doing, the CVRA provides a model for the states. The cases decided since the CVRA was passed are summarized in the article entitled The New Federal Landscape: Snapshots of Change.

Barbara Brady, LCSW Prof. Paul G. Cassell David Chanen Meg Garvin, JD Kim Montagriff, JD Carol Schrader, JD Jamie Taft Editor: Diane Heintz

Finally, and perhaps most importantly, the advancement of victims’ rights relies on individuals—people like you who can make a difference. For instance, one victim who attends a trial can catch misstatements of fact and assist in the impeachment of a witness. The importance of the individual’s right to attend trial is discussed in the article entitled The Crime Victim’s Right to Attend Trial: The Reascendant National Consensus. This issue of the NCVLI News is a tribute to the power of these individual moments—the persons, laws, and cases that are advancing victims’ rights. Within this issue is also a recognition that true social change is sparked by the power of these moments and is strengthened by collaboration. NCVLI and other victims’ rights organizations celebrate these individual moments.

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Board of Directors Sean Beers, CPA, J.D.

IN

Gail Burns-Smith Helene Davis

THIS ISSUE

...

Jim Goelzer Sally Goelzer

Cover

Professor Doug Beloof

Candice Kane, Ph.D., J.D. James Huffman, J.D. (ex officio)

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NCVLI Volunteer / Law Student Profile Jamie Taft *

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In the Trenches

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NCVLI Technical Assistance & Brief Bank

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The Oregon Compliance Implementation Project Carol Schrader *

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Developing Victims’ Rights Law: A Study of Precedent and Dicta Kim Montagriff

13 Preparation of NCVLI News was supported by Grant No. 2002-VFGX-K004, awarded by the Office for Victims of Crime (OVC), Office of Justice Programs, U.S. Department of Justice. The opinions, findings and conclusions expressed in this newsletter are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice. OVC is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the National Institute of Justice, and the Office of Juvenile Justice and Delinquency Prevention.

State & Federal Demonstration Project: It Looks Promising Barbara Brady

NCVLI Staff Executive Director Professor Douglas E. Beloof, J.D. Program Manager Barbara Brady, LCSW Staff Attorneys Meg Garvin, J.D. Jessica Mindlin, J.D. Kim Montagriff, J.D. Joanna Tucker Davis, J.D. Student Intern Debbie Stojak Administration Bea Frelich Jeff Hanson Diane Heintz

Director’s Message

The New Federal Landscape: Snapshots of Change Meg Garvin

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Crime Victim Litigation Clinic

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National Crime Victims’ Rights Attorneys

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The Victim’s Right to Attend Trial Doug Beloof & Professor Paul Cassell *

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2005 Conference Wrap-up

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A Victim’s Story: the Erica Rae Blake Story David Chanen * & Minneapolis Police Sgt. Bill Blake *

*NCVLI editorial staff welcomes Carol Schrader, Project Director for the Oregon Crime Victims’ Rights Compliance Project; Professor and Judge Paul Cassell; Jamie Taft, Lewis & Clark Law Student and NCVLI Volunteer; David Chanen, of the Minneapolis Star Tribune, and Sergeant Bill Blake of the Minneapolis Police Department, as guest contributors to this issue of the NCVLI News.

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THE P ROJECT: IT L OOKS P ROMISING by Barbara Brady

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he State and Federal Clinics and System Demonstration Project, funded by NCVLI through a grant from the Office for Victims of Crime of the United States Department of Justice, continues to progress in its efforts to identify and implement promising practices in crime victims’ rights enforcement. Of the seven major elements of the Project (NCVLI’s Annual Law & Litigation Conference, the National Alliance of Victims’ Rights Attorneys, this newsletter, NCVLI Aid, education of the legal profession, NCVLI’s amicus curiae litigation, and pro bono legal clinics), the 8 state and 1 federal pro bono legal clinics are the engine driving the Project’s enforcement of victims’ rights in the criminal justice system. The basic model elements of each clinic include a close working relationship with NCVLI for technical assistance, consultation, and training, and a community-based, crime victim-centered package of legal representation and training/education of the legal profession. NCVLI funding supports a clinicbased paid staff attorney whose time is leveraged by the use of pro bono attorneys to represent crime victims. The foundation of the clinical model integrates the clinic with collaboration partners in the community, including victim service providers, law schools, law enforcement, prosecutors’ offices, courts, and other agencies and individuals involved with victims of crime. The nature of the Project— the “demonstration” aspect—is that each clinic’s implementation of its unique version of the basic model will generate promising practices that other similarly situated organizations can replicate in the future.

NCVLI’s role in supporting the Project is not only to monitor and provide technical assistance for the individual clinics, but also to work with the clinics as a system to identify, analyze, document, and ultimately catalogue sets of promising practices. The Project is still in its early phases of development and, therefore, cataloguing all practices that will ultimately be deemed promising is premature at this time. The following are early hypotheses: 1. The involvement of a victim’s attorney alters the treatment of crime victims by criminal justice professionals. 2. The role of pro bono attorneys in the enforcement of victims’ rights in the criminal justice system is evolving. Early analysis reveals that there is tremendous benefit from the use of pro bono attorneys, but logistical complications may require additional training of the attorneys and/or use of their efforts on discrete moments of representation. 3. Focusing on priority issues for targeted litigation allows each clinic to engage the entire community of victims’ services providers, state agencies, and others who care about the rights of crime victims, in the pursuit of justice. Targeted litigation achieves far-reaching results by seeking cases that will set precedent, thus benefiting the most people in the most significant ways. 4. Clinic staff attorneys must develop and steadfastly maintain relationships with prosecutors and victim advocates, and develop open communications regarding the unique and complimentary roles each of these individuals play in serving crime victims. (continued on page 4)

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(continued from page 3) In the next issue of the NCVLI News, we will look back on two years’ progress for California’s Crime Victims Legal Clinic, Arizona’s Crime Victim Legal Assistance Project, Maryland’s Crime Victim Law Clinic, New Mexico’s Victims’ Rights Legal Assistance Project, and South Carolina’s Crime Victim Legal Network. In addition, we will look at the first year of clinic life for Idaho’s Victims’ Rights Clinic, New Jersey’s Crime Victims’ Legal Advocacy Program, and Utah’s Victim’s Legal Clinic. For now, we can certainly say “it looks promising!” For more information on the Demonstration Project visit the NCVLI Home Page at http://www.lclark.edu/org/ncvli/ and click on the Demonstration Project link in the left margin.

SAVE THE DATE! June 16-17, 2006 NCVLI’s 5th Annual Crime Victim Law & Litigation Conference

The Power of One, Strength of Many: Advancing Crime Victims’ Rights

Hilton Hotel Portland, Oregon

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STUDENT VOLUNTEER

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’m Jaime Taft, a second year law student at Lewis and Clark Law School in Portland, Oregon. After my first year of law school ended, I was looking to gain some practical experience. I didn’t have a lot of luck finding a full-time, lawrelated summer job, which is not unusual, so I looked into volunteer opportunities instead. I contacted NCVLI and offered to volunteer, and they were happy to meet me. I volunteered twelve hours a week for the summer, and it was worth every minute. At first, I thought crime victims’ rights would just be a limited arena, but it became rapidly apparent just how broad and far reaching it is. Over the summer, I had three very different projects to work on in areas of law that are not well settled. These problems were just as novel as any presented in legal writing, but related to real people. Working on them would have a personal impact. One project arose out of a request for information from a victim and another required research into a legal issue up on appeal. I discovered so much information on the appeal issue that I was asked to help draft a potential amicus curiae brief. In addition to researching and writing, I volunteered for the NCVLI Law & Litigation Conference. I sat in on panels that I found interesting, and talked to attorneys about their experiences in the field. I also went to NCVLI office meetings, where they encouraged my participation and insight. All in all, I was treated like an office equal and got to see how real lawyers work. I know that a law student’s time and money are limited, but volunteering is a great way to take those skills you’ve learned for a test drive.

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IN THE TRENCHES In this column NCVLI publishes news from the frontlines of the crime victims’ rights movement— information about cases we all should know about, but aren’t published in any of the reporters.

• In New Mexico, in a juvenile court proceeding, defense sought to depose a rape victim and question her in the presence of the accused about prior consensual sexual conduct. In the absence of any showing of relevance, materiality, or necessity, the court ordered the deposition. The prosecutor filed a Petition for Writ of Prohibition to the New Mexico Supreme Court, and a victims’ rights attorney filed an amicus curiae brief. The New Mexico Supreme Court issued the writ, requiring that the trial court first hold a rape shield hearing to determine the appropriate scope of inquiry prior to requiring a deposition. On remand, the lower court reversed its earlier decision, and ordered the defense make a showing for the rape shield hearing prior to any interaction with the victim, and that any interaction with the victim consist only of an interview with written questions in a safe house. • In Arizona, without providing constitutionally required notice to the victim (a judge), the state and defendant entered into a plea agreement to dismiss the charge involving the victim but retaining other charges; the court accepted the plea. Upon learning of the plea agreement, the victim’s attorney filed a motion to vacate, and the court granted that motion. Following the victim’s exercise of her right to be heard, the court expressed reservations about accepting the plea which the state had re-offered. After further negotiations, the state offered and the court accepted a new plea which included the counts involving the victim. • In South Carolina, a magistrate informed the victim’s attorney that, contrary to state constitutional requirements, the local practice was not to notify victims of hearings where damage or property stolen was less than $1,000. A South Carolina statute provides for this practice, but it predates the constitutional amendment which provides for notice, a right to be heard, and restitution. The judge stated in his ruling that the statute trumps the constitutional requirements. The victim’s attorney requested a written order memorializing the ruling

and will challenge this practice in the future. • In New Mexicoo, a court rejected a victim’s attorney’s entry of appearance, stating that there was no need for it unless or until the victim’s rights had been violated. Following the attorney’s explanation of the necessity and legality of entering an appearance on behalf of her client, the court accepted the attorney’s entry. • In New Jerseyy, where the defendant indicated he would not be present at sentencing to avoid hearing victim impact statements, a victim’s attorney filed a motion for leave to appear as amicus curiae and sought to compel the defendant to appear. • In New Mexico o, a victim was present at a parole violation hearing where the offender had been convicted of domestic violence and stalking and the violation involved additional violence and stalking. The hearing was continued and the victim left the courtroom. At the request of the defense, the case was recalled later that same day and the court, without notice to or hearing from the victim, set low terms for release. The victim’s attorney filed a motion for reconsideration, which was granted. • In South Carolinaa, a woman was hit and killed by a drunk driver. The defendant pled guilty to DUI, reckless homicide, and leaving the scene of the accident. Notwithstanding the victim’s father’s constitutional and statutory rights to restitution, the court refused to order restitution, stating that the father could seek recovery in a civil proceeding. • In Arizonaa, defense counsel informed the prosecutor that since the victim’s attorney was successful in blocking access to the 14-year-old sexual assault victim’s school and counseling records, defense counsel intended to instruct the court-appointed private investigator to follow the victim and her friends. The victim’s attorney is objecting to use of state funds for this and is seeking a protective order.

If you know of a case to be included in our “In the Trenches” column, please email us at ncvli@lclark.edu. Page 5

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NCVLI’S TECHNICAL ASSISTANCE & BRIEF BANK As part of its mission to advance crime victims’ rights, NCVLI litigates nationwide and provides research and educational material in response to technical assistance requests from attorneys across the country. The following is a sampling of questions that NCVLI has recently conducted research on. If you would like a copy of educational materials regarding victims’ rights, or if you are an attorney seeking technical assistance, please contact NCVLI at 503-768-6819, or at: www.ncvli.org.

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ince Spring of 2005, NCVLI staff attorneys have analyzed these and other legal issues: •

Whether the prohibition against double jeopardy prevents a court, on a victim’s motion, from vacating an illegal plea.

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The mechanisms by which a victim’s identifying information might be kept confidential.

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The law in Oregon regarding the use of closed circuit television to facilitate the testimony of child-victims.

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Current research regarding the efficacy of batterer’s treatment programs.

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Whether a crime victim who has a mandatory state constitutional right to restitution is entitled to minimal due process to protect that right.

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Whether Maryland should follow the historical rule that when a defendant dies pending direct appeal, his or her conviction abates ab initio o, or adopt the approach taken by the majority of courts that have considered the issue since the advent of victims’ rights and reject the abatement doctrine.

W hether a defendant has a state constitutional right to depose a sexual assault victim and inquire about prior consensual sex with another person without first making a showing of relevance.

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The right to be heard at sentencing under the federal Crime Victims’ Rights Act.

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Whether a victim in New Mexico has standing to enforce her constitutional and statutory rights to be present during trial.

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The state of the law nationwide regarding whether a defendant may gain access to a victim’s home during the criminal discovery process.

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Whether a defendant may gain access to a victim’s confidential school records.

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Oregon’s statutory privileges and the attendant case law.

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Whether, in Arizona, a defendant may receive a higher punishment at sentencing after his original sentence was overturned because of Blakely v. Washingtonn, 542 U.S. 296 (2004).

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THE OREGON CRIME VICTIMS’ RIGHTS COMPLIANCE IMPLEMENTATION PROJECT by Carol Schrader

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regon law identifies several dozen rights for crime victims in its state constitution and statutes. Many of the rights are well known and well followed. Others are overlooked, unfamiliar—to both crime victims and legal advocates—or not consistently enforced. Although the rights apply statewide, their implementation often varies depending on the county in which the crime occurs, whether an offense was committed by a juvenile or an adult, and the agency or institution responsible for enforcement of the right.

will establish consistent understanding and enforcement of victims’ rights in Oregon.

To steer the project, Oregon Attorney General Hardy Myers appointed a statewide Crime Victims’ Rights Advisory Committee which he has charged with “develop[ing] a coordinated plan so that within the Oregon criminal justice system, crime victims’ rights will be clearly and consistently understood by crime victims, and crime victims will have every opportunity to fully exercise their rights – every victim, every right, every case, The result of such an me.” The committee is chaired t i m s’ c i v e ambiguous response to vicug Beloof, Executive Director of crim and “. . . ill be clearly od tims of crime is predictable. tional Crime Victim Law Instisto sw r t e h d g i n r u In 2002, a Crime Victims nd Professor of Law at Lewis and a nd tently consis e victims, ave Needs Assessment conducted Clark Law School. Professor Beloof is ll h c r im i w y s b by Portland State University inced that the Project can “make im e vict r t u n it y to m i r c o found that as many as 59 per matic improvements through opp ights e ve r y rcise their r er y cent of crime victims in Oregon effective planning and a renewed y exe ic t im, ev l l u f believed that crime victim mmitment to victims.” v ry ve r y e, eve e s a – c y rights laws were not enforced ever right, in their cases. Indeed, Oreg he Advisory Committee includes e.” m i t lags behind the federal gove more than twenty representatives ment and most other states when from advocacy organizations, it comes to enforcing vict law enforcement, corrections rights. It is this gap between r and the courts. The Commitand enforcement that the Oregon tee is designed to maximize Crime Victims’ Rights Compliance input from and accountability to broad constituenImplementation Project intends to bridge. cies across the state. Each Advisory Committee member serves on one of six subcommittees. The The Oregon Compliance Implementation Project subcommittees will draft proposals to improve is designed to increase both awareness and undervictim awareness and system compliance. In turn, standing of crime victims’ rights and compliance each Committee member will distribute proposals with those rights. The Oregon Department of Jusand invite comments from Oregon stakeholders, tice receives funding for this project from the U.S. including state-wide district attorney, defense lawDepartment of Justice, Office for Victims of Crime, yer, juvenile department director, judge, police and and it is working in partnership with the National corrections associations; local public safety and Crime Victim Law Institute and the Portland State family violence coordinating councils; the Oregon University Regional Research Institute. One of two Coalition Against Domestic and Sexual Violence; crime victims’ rights compliance pilot programs in and other victim service providers. the nation currently funded by the OVC ( the other (continued on page 8) is in Pennsylvania), the Oregon compliance project Page 7

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The compliance project sub-committees each pursue one of the following goals: • Increase awareness of crime victims’ rights;

how notice of these rights will be effectively communicated to victims (and by whom), how to address differences in the adult and juvenile

• Improve compliance within the criminal justice system;

systems, how to manage fiscal constraints, and

• Set up a way to report, review, and resolve failure to comply with crime victims’ rights;

vary from county to county, Advisory Committee

• Design a training model for improved victim awareness and system compliance, and education about new non-compliance measures;

how to reconcile priorities for compliance that may members hope to answer decisively the charge from Attorney General Hardy Meyers and set Oregon firmly on the path of strong crime victims’ rights compliance.

• Measure effectiveness of the Compliance Project; and • Plan how to access the resources needed for ongoing compliance in Oregon. The Advisory Committee work is well underway. Committee members have identified crime victim rights for which they have statutory responsibility

For more information about Oregon’s Crime Victims’ Rights Compliance Implementation Project, call Carol Schrader, Project Director, or Stasia Honnold, Project Assistant, at 503-7686867. Or e-mail them at stasia.j.honnold@state. or.us.

and, where statutes do not explicitly delegate responsibility for enforcing a right, have decided who they think should be responsible for compliance with the right. Members also have discussed how to best ensure consistent, state-wide compliance with all the crime victims’ rights. Grappling with such issues as identifying a list of victims’ rights,

Carol Schrader is the Project Director for the Oregon Crime Victims’ Rights Compliance Implementation Project. She is a former legal aid attorney and non-profit agency director. Stasia Honnold is a recent graduate of Lewis and Clark College.

R ECE N T D ECISION OF I N T E R E ST : R IGH T TO N OT ICE U PH E L D I N U TA H State v. Gonzales, ___P.3d. ___, 2005 WL 2899856 (Utah 2005) In December 2003, NCVLI filed an amicus curiae

through the prosecutor’s office and an opportunity

brief in a Utah case in which the defendant argued

to be heard before a defendant may gain access to

that Utah law allowed him to subpoena a victim’s

victims’ records. The Utah Supreme Court has now

records without notifying the victim or the State.

issued its opinion and held that in light of the Utah

NCVLI’s brief argued that Utah subpoena law,

Crime Victims’ Rights Amendment and victims’

federal due process, and the Utah Victims’ Rights

privacy interests, victims must be notified when

Amendment require that a victim receive notice

records are subpoenaed.

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DEVELOPING VICTIMS’ RIGHTS L AW: A STUDY OF PRECEDENT AND DICTA by Kim Montagriff

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he first state constitutional victims’ rights were passed in the 1980’s. See, e.g., Cal. Const. art. I, § 28 (amended in 1982 to add victims’ rights to restitution); Fla. Const. art. I, § 16 (amended in 1988 to add victims’ rights); R.I. Const. art. I, § 23 (amended in 1986 to add limited victims’ rights). Over twenty years later, the development of victims’ rights case law remains in its infancy as courts grapple with the task of outlining the contours of state constitutional and statutory victims’ rights. The careful development of this case law is critical to create precedent1 that advances victims’ rights and encourages stability and predictability in the law.

Over twenty years later, the development of victims’ rights case law remains in its infancy . . . Adherence to precedent is the cornerstone of judicial decision-making: “It promotes the evenhanded development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). Especially where a court is presented with an issue of first impression – such as the construction of newly enacted constitutional provisions granting

rights to crime victims – courts seek guidance from prior court decisions.

In most states, a victim’s attorney seeking enforcement of state constitutional or statutory rights is likely breaking new ground. In most states, a victim’s attorney seeking enforcement of state constitutional or statutory rights is likely breaking new ground. As victims’ attorneys seek to represent their individual clients’ interests, they should be mindful that their statespecific case law may be used – or misused – in victims’ rights cases in other jurisdictions. In seeking enforcement of o victims’ rights, these attorneys must carefully parse through courts’ decisions in prior victims’ rights cases, seeking arguments and holdings that support their case while vigilantly guarding against the unwarranted extension of negative dicta.2 This article summarizes a number of key victims’ rights cases decided over the past 35 years. In these summaries are each court’s use of precedent andd dictaa in resolving the victims’ rights issue presented, and recommendations for future litigation by victims’ rights attorneys.

Misuse of Persuasive Precedent and Dicta In 1973, prior to the passage of federal statutory victims’ rights, the United States Supreme Court considered whether an unmarried woman could seek to enjoin the prosecutor’s office from discriminately applying a statute criminalizing the non-payment of child support by refusing to prosecute fathers of children born to unmarried women. Linda R.S. v. Richard D., 410 U.S. 614 (1972). The Court’s narrow holding in Linda R.S. was that the victim could not demonstrate a nexus between the prosecutor’s alleged discriminatory enforcement of the child support statute and the woman’s failure to secure child support payments, and as such, the victim did not have standing to seek the relief she requested. The Court reached this conclusion because even if the criminal statute was equally enforced against fathers of children born to unmarried women, those prosecutions would not necessarily result in the payment of child support.

[The] selective use of dicta has thwarted the enforcement of victims’ rights. (continued on page 10 ) Page 9

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At this point in the opinion, the Court had resolved the issue before it. In dicta, however, the Court acknowledged the prevailing view that a crime victim cannot compel a criminal prosecution because “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Highlighting the absence of any crime victims’ rights, the Court opined that its analysis might be different where a statute created a legal right, the violation of which would provide standing. Following the passage of explicit victims’ constitutional and statutory laws, when faced with the question of enforcement of those laws, some courts have selectively quoted the Linda R.S. Court’s dicta regarding a victim’s lack of interest in a criminal prosecution and ignored the Court’s dicta regarding recognizing victim standing pursuant to the creation of new legal rights. This selective use of dicta has thwarted the enforcement of victims’ rights law.

The court’s reliance on dicta from Linda R.S. to unnecessarily vitiate all enforcement of victims’ rights in Massachusetts is illustrative of the misuse of precedent and the abuse of dicta . . . For example, in 1983, Massachusetts passed statutory rights for Page 10

victims, including the right to a “prompt disposition.” See MASS. GEN. LAWS ch. 258B, § 3(f). Almost 25 years after Linda R.S., and faced with an explicit law granting a right as suggested by the Court in Linda R.S., the Massachusetts Supreme Court considered whether a crime victim had standing to seek to enforce her right to a prompt disposition. See Hagen v. Commonwealth, 722 N.E.2d 32 (Mass. 2002). In 1987, the defendant in Hagen was convicted of rape but the execution of his sentence was stayed until early 2001, when the prosecution finally requested revocation of the stay. Citing the victim’s right to a prompt disposition, attorney Wendy Murphy also requested revocation of the stay. The defendant objected to the victim’s motion, claiming she lacked standing, and the trial court sustained the defendant’s objection insofar as the victim’s presence would confer “party status” on the victim. On appeal, the Massachusetts Supreme Court held that the victim’s right to a prompt disposition did not extend beyond sentencing and certainly did not apply to post-sentencing proceedings. The court’s holding, based on a narrow construction of the right to prompt disposition, was not overly burdensome to victims’ rights in general. Inexplicably, however, the court went on in dicta to opine that even if the right did apply to

post-sentencing proceedings, the victim would still lack standing. Citing cases that referenced a victim’s inability to compel a criminal prosecution, relying on dicta from Linda R.S. as if it was the holding of that case, and ignoring that the victim was not seeking to compel a prosecution, the court explained that creation of victims’ rights did not alter its long-standing jurisprudence that a victim is not a proper party to a criminal proceeding. The court’s reliance on dicta from Linda R.S. to unnecessarily vitiate all enforcement of victims’ rights in Massachusetts is illustrative of the misuse of precedent and abuse off dicta a of which victims’ attorneys need to be leery. Using Persuasive Authority Victims’ attorneys are not without favorable precedent at their disposal. The following two cases demonstrate courts’ careful examination of the victim’s interests and proper participatory role in a criminal justice proceeding. These cases should be cited in future victims’ rights cases to establish positive precedent regarding a crime victim’s standing to assert his or her rights. In United States v. Doe, 666 F.2d 43 (4th Cir. 1981), a federal appeals court considered whether it had jurisdiction to entertain the victim’s appeal of a district court’s decision to admit evidence arguably (continued on next page)

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prohibited by the federal rape shield law, FED. R. CRIM. P. P 412. The court first noted that the purpose of the rape shield law was “to protect rape victims from the degrading and embarrassing disclosure of intimate details about their private lives.” (internal quotations omitted).

“ . . . congressional intent . . . will be frustrated if rape victims are not allowed to appeal an erroneous evidentiary ruling . . .” The court explained that the victim is the proper champion of her own privacy interests and stated that “the congressional intent embodied in rule 412 will be frustrated if rape victims are not allowed to appeal an erroneous evidentiary ruling . . .” and seek “to protect their privacy from invasions forbidden by the rule.” The court held, therefore, that it had jurisdiction to hear the victim’s appeal. While this case is binding only in the Fourth Circuit, the court’s analysis of the purpose of rape shield laws and victim standing is persuasive authority in other jurisdictions and should be used accordingly by victims’ rights attorneys nationwide. Similarly, in a case of first impression following the 1991 passage of the Rights of Victims of Crime

Amendment to the New Jersey Constitution, in In re K.P., 709 A.2d 315 (N.J. Super. Ct. 1997), a New Jersey court considered whether a minor-victim had standing to oppose a newspaper’s motion to open a delinquency proceeding where the juvenile was accused of sexually assaulting the victim. In resolving this case, the court was not sidetracked by the novelty of the issue with which it was presented, and it implicitly rejected the idea that standing in court turns on whether the litigant is a party to the underlying proceeding. Instead, the court reviewed well-established legal principles of standing, seeking to determine whether the victim had a “personal stake in the outcome of the controversy. . . .” (internal quotations omitted). The court found “no question” that the victim would be directly affected if the juvenile proceeding was opened to media coverage, g and concluded, therefore, that the victim had standing to oppose the newspaper’s motion. The reasoning of the court in In re K.P. is persuasive and victims’ rights attorneys should encourage other jurisdictions to engage in the same standing analysis. In addition to providing useful persuasive precedent on the appropriate analysis of victim standing, both Doe and In re K.P. demonstrate that “party status” is not necessary to assert, enforce, or defend victims’ rights. Victims’ attorneys should be regularly distinguishing

between “party status” and standing to establish additional precedent regarding victims’ proper role in the criminal justice process. Overruling United States Supreme Court Precedent In 1987, the United States Supreme Court considered the constitutional effect of the admission of a written victim impact statement (VIS) at a capital sentencing proceeding. Booth v. Maryland, d 482 U.S. 496 (1987). The VIS at issue in Booth “described the personal characteristics of the victims and the emotional impact of the crimes on the family[,]” and “set forth the family members’ opinions and characterizations of the crimes and the defendant.” The Court explained that this information was irrelevant and created an “unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.” In a 5-4 decision, the Court held, therefore, that the statute requiring the admission of a VIS violated the Eighth Amendment’s prohibition of cruel and unusual punishment. A mere four years later, in 1991, the Court again considered the constitutional effect of the admission of a victim impact statement in Payne v. Tennessee, 501 U.S. 808 (1991). Reconsidering its holding in Booth, the Court concluded that the Eighth (continued on page 12)

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Amendment did not erect a per se bar to the admission of victim impact evidence during a capital sentencing proceeding. According to the Court in Payne, there is no constitutional prohibition against admitting evidence concerning a victim’s personal characteristics or the impact of the crime on the victim’s family or community. The Court’s reversal signaled its approval of the recognition of the unique characteristics of the victim in a capital sentencing proceeding. This holding, based on the federal constitution, is applicable to all state court cases. The decision, however, is also replete with dicta about the victim’s proper

NCVLI

welcomes story ideas and suggestions for future articles that spotlight an attorney, service provider, advocate, or public or private citizen working on behalf of crime victims. Please send ideas and/ or stories to the following address: NCVLI Newsletter Lewis & Clark Law School 10015 SW Terwilliger Boulevard Portland, OR 97219 Tel: 503-768-6819 Fax: 503-768-6255 ncvli@lclark.edu Page 12

role as participant in criminal justice proceedings more generally. Victims’ attorneys should not only continue to cite the Payne Court’s holding about the admissibility of victim impact statements at capital sentencing proceedings, but should recognize the utility of the Court’s dicta in enforcing victims rights beyond those at capital sentencing proceedings.

single case can have far reaching effects on the development of victims’ rights law and the resulting enforcement of victims’ rights nationwide.

Development of case law through precedent

2 Dicta is merely the “[o]pinions of a judge

These cases are just a few examples of important moments in the development of victims’ rights case law. Victims’ attorneys must continue to carefully navigate available precedent, remembering that a

(Footnotes) 1Precedent is a decision of another court that is used as “an example or authority for an identical or similar case afterward arising or a similar question of law.” BLACK’S L AW DICTIONARY 1176 (6th ed. 1991).

which do not embody the resolution or determination of the specific case before the court.” BLACK’S L AW DICTIONARY 454 (6th ed. 1991). These expressions of opinion “go beyond the facts before the court and therefore are individual views of [the] author of [the] opinion and not binding in subsequent cases as legal precedent.” Id.

NCVLI STAFF

NAVRA

If you are not already a member of the National Alliance of Victims’ Rights Attorneys, register today and join the growing membership of victims’ rights attorneys and advocates.

From left: Jeff Hanson, Paralegal; Meg Garvin, Lead Staff Attorney; Bea Frelich, Legal Assistant; Barbara Brady, Program Manager; Kim Montagriff, Staff Attorney; Jessica Mindlin, Senior Staff Attorney; Doug Beloof, Executive Director, Joanna Tucker Davis, Staff Attorney.

For an update of NAVRA activities and registration information, please turn to page 17, or visit NAVRA’s webpage: http://law. lclark,edu/org/ ncvli/alliance.html

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The New Federal Landscape: Snapshots of Change by Meg Garvin

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SUPREME COURT BUILDING WASHINGTON, DC

ust over a year has passed since the Crime Victims’ Rights Act, 18 U.S.C. § 3771 (CV R A), was signed into law. The impact of this historic legislation is slowly unfolding as victims, their attorneys, and U.S. Attorneys’ Offices begin to litigate the scope of the rights provided.

In the year since the CVRA’s passage, at least fifteen federal courts have been asked to interpret and apply the new law—or have done so of their own accord (sua sponte). While it is too soon to know the full impact of the law, it is clear that a dramatic shift in the business of the federal criminal justice system is beginning to take place. Courts and parties to criminal proceedings are being forced to factor victims’ rights into their analyses. For example, a federal court in New York sua sponte reviewed the CVRA and the affirmative obligations it places on courts. See United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y. 2005). The Turner Court concluded that to give effect to all parts of the CVRA, it had an obligation—independent from any prosecutorial obligation—to establish procedures in advance to assure compliance with the CVRA, not merely to rule on victims’ applications for relief. Id. Certainly not all aspects of these court decisions are favorable to crime victims. One federal court referred, in dicta, to the CVRA as “the new, mushy, ‘feel good’ statute with the grand title ‘Crime Victims’ Rights.’” United States v. Holland, 380 F. Supp. 2d 1264, 1279 (N.D. Ala. 2005). However, even unfavorable decisions, or seemingly hostile dicta, represent an important shift in the criminal justice system. Crime victims are present and recognized in a new and significant way.

Summaries of thirteen cases discussing the CVRA —organized by the right most affected by the court’s discussion—follow: The Right g to Reasonable,, Accurate,, and Timelyy Notice of Any y Public Court Proceedingg – 18 U.S.C. § 3771(a)(2) ( )( ) In re W.R. Huff Asset Management Co., 409 F.3d 555 (2d Cir. 2005). A jury found John and Timothy Rigas (the Rigases) guilty of securities fraud. Subsequently, the government entered a proposed settlement agreement with the Rigases and other members of the Rigas family who had either not been named or convicted. Pursuant to the settlement agreement, the entire Rigas family would forfeit assets in exchange for the government not requesting an order of restitution or a criminal fi ne. Noting the numerosity of victims and the alleged impossibility of notifying each victim, the government moved the court to designate the case as one with multiple crime victims under subsection (d)(2) of the CVRA, and proposed an alternative plan for notification. Petitioners/victims objected to the settlement and sought additional notice. Ruling that such notice would cause “unacceptable” delay the district court accepted the settlement. Id. d at 560. Petitioners sought a writ of mandamus, arguing that the settlement agreement violated their rights including the rights to be treated fairly, to full and timely restitution, to notice, and to an opportunity to confer with the government. Applying an abuse of discretion standard, the Second Circuit upheld the trial court’s rulings. United States v. Ingrassia, 392 F. Supp. 2d 493 (E.D.N.Y. 2005). The trial court refused to rule generally on the government’s objections to the magistrate’s report and recommendations, which had found that, while the pleas satisfied the relevant requirements of the federal rules, they violated the notification rights in the CVRA. The court did rule, however, that the magistrate’s recommendation that the government’s objections be served by first-class (continued on page 14)

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mail, or other reasonably equivalent method, on the victims was unnecessary and not required by the CVRA. The Right g Not to be Excluded from Public Court Proceedings g – 18 U.S.C. § 3771(a)(3) ( )( ) United States v. Johnson, 362 F. Supp. 2d 1043 (N.D. Iowa 2005). The government filed a pretrial motion to permit victim-witnesses to be present during the merits phase of the trial, even if a victim-witness was to testify. Noting that the CVRA provides “a crime victim ‘[t]he right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding,’” the court granted the motion. Id. d at 1056 (quoting 18 U.S.C. § 3771). The court found that the defendant had made no showing that the testimony would be materially altered, and determined that the victim-witnesses would testify to matters not subject to material alteration.

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co-defendant’s earlier sentencing and had submitted a written statement, the court need not hear from him at the current sentencing. Despite the CVRA’s requirement of a 72-hour review period, the district court was permitted to file a response to the petition for the writ of mandamus on August 29, 2005. This pleading was not served on the victim. The case has been assigned to a merits panel for decision in January, 2006, nine months after the action was brought.

The Right g to Be Reasonably y Heard at Public Court Proceedings g – 18 U.S.C. § 3771(a)(4) ( )( ) In re Kari Ann Jacobsen, Case No. 05-7086, 2005 Lexis 13990 (D.C. Cir. July 8, 2005). The victim filed a writ of mandamus arguing that the CVRA applied in the District of Columbia, and seeking to be heard prior to the court’s acceptance of a plea. Avoiding the question of whether the CVRA applied in the District of Columbia, the appellate court held that, even if the victim was entitled to a writ of mandamus, she had failed to make necessary showing because the plea had not been irrevocably accepted by the superior court and thus there was no case or controversy to be decided. Kenna v. United States District Courtt (Case No. CR-03-00568-JFW). Victim, through counsel, filed a writ of mandamus in May 2005, arguing that the district court for the Central District of California denied his right to be heard when it held that because the victim was heard at

Sculptor James Earle Fraser’s statue CONTEMPLATION OF JUSTICE, seated on the left side of the main steps to the Supreme Court Building.

United States v. Marcello, 370 F. Supp. 2d 745 (N.D. Ill. 2005). The government sought leave for the victim to offer an oral statement opposing the defendant’s pretrial release. The court held that the right to be heard did not require admission of oral statements in every situation, “particularly one in which the victim’s proposed statement was not material to the decision at hand.” Id. d at 746. The court based its reasoning on the reasonableness requirement of the right, coupled with the court’s determination that “heard” is a term of art. The court rejected any resort to legislative history (which plainly requires oral statement), fi nding that despite the explicit statements in the history regarding the right to be heard, too little history (continued on next page)

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existed and that which did exist did not reflect sufficient debate or exchange of ideas. The court went on to state that while “a victim’s statements will (at least at sentencing and prison release hearings) almost always be relevant, material and spoken from personal knowledge, this will not always be the case at hearings on bond . . . .” Id. d at 750. The court concluded that “[i]n light of the statute’s clear language, the purpose of the detention hearing and the content of the testimony sought to be introduced in this case, I found that this victim’s right to be reasonably heard could be satisfied through means d other than an oral statement.” Id.

“The Republic endures and this (the Supreme Court) is the symbol of its faith,” Chief Justice Charles Evans Hughes, laying the cornerstone for the Supreme Court Building on October 13, 1932.

The Right g to Full and Timelyy Restitution – 18 U.S.C. § 3771(a)(6) ( )( ) United States v. Visinaiz, 344 F. Supp. 2d 1310 (D. Utah 2004), aff’d on other grounds 2005 WL 3065950 (10th Cir. 2005). Defendant was found guilty of second degree murder and filed an objection to the proposed award of restitution, arguing that the jury rather than the judge had to establish restitution in light of Blakely v. Washington, 542 U.S. 296 (2004). The District Court revisited its prior decisions in

United States v. Bedonie and United States v. Serawop, 317 F. Supp. 2d 1285 (D. Utah 2004), in which it held that the Mandatory Victims Restitution Act mandates an award of lost income in homicide cases, and re-affirmed its prior decision, noting that the legislative history of the CVRA specifically endorses the Bedonie and Serawop holdings. The Right g to Proceedings g Free From Unreasonable Delay y – 18 U.S.C. § 3771(a)(7) ( )( ) United States v. Eight Automobiles with Fraudulently Obtained Ohio and New York State Division Of Motor Vehicle Titles, 356 F. Supp. 2d 223 (E.D.N.Y. 2005). Petitioners, appearing pro se, filed a motion seeking return of their automobile, which had been seized and held as evidence for ten months in a criminal case. Balancing the government’s interest in preserving and examining potential evidence with the petitioners’ interests in obtaining return of their property, the court denied the petitioners’ motion without prejudice. The court noted, however, that the CVRA’s provision of an enforceable right “to proceedings free from unreasonable delay,” might create “standing, independent of the government’s, to intervene in the case to contest any ‘unreasonable delay’ of that trial.” Id. d at 226 (quoting 18 U.S.C. § 3771). United States v. Tobin, 2005 WL 1868682 (D.N.H. July 22, 2005). The prosecution and defense jointly moved for a second continuance of the trial, to which the victim (the New Hampshire Democratic Party) filed an objection. The court noted that the right to proceedings free from unreasonable delay, was not meant “to undermine the Speedy Trial Act, 18 U.S.C. § 3161, et seq., nor to deprive either criminal defendants or the government of a full and adequate opportunity to d at *2. The court found that prepare for trial.” Id. “[a] trial within seven months of the superseding indictment does not constitute either ‘undue’ or d The court went on to ‘unreasonable’ delay.” Id. state that, because victims have statutory rights under the CVRA and the court has a statutory obligation to ensure the rights in the CVRA are afforded, “the parties are hereby put on notice that (continued on page 16)

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no further continuance will be granted in the absence of extraordinary circumstances.” Id. d United States v. United States District Court for the District of Utah, 2005 U.S. Dist. Lexis 24409 (D. Utah Oct. 19, 2005). The court rejected defendant’s motion to substitute counsel because it failed to comply with local rules. In so holding, the court noted that strict compliance with the rules serves important purposes, including avoiding unnecessary continuance of trial which might run afoul of both defendants’ and crime victims’ rights to a speedy trial. United States v. Wilson, 350 F. Supp. 2d 910 (D. Utah 2005). When imposing sentence, the court addressed a number of issues arising out of United States v. Booker, r 543 U.S. 220 (2005). In resolving the issues, the court noted that it was reluctant to delay the sentencing because it had already been delayed by more than a month, the crimes were serious and caused considerable “trauma and anxiety” to the victims, and Congress had “mandated that victims have the right ‘to proceedings free from unreasonable delay.’” Id. d at 931 (quoting 18 U.S.C. 8, 3771).

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The Right g to be Treated with Fairness and Respect p for the Victim’s Dignity g y and Privacyy – 18 U.S.C. § 3771(a)(8) ( )( ) United States v. Kaufman, 2005 WL 2648070 (D. Kan. Oct. 17, 2005). A television station filed a motion arguing that the First Amendment afforded it the right to have a sketch artist attend and publicize drawings of proceedings involving alleged sexual misconduct with mentally ill victims. Citing the CVRA’s provision that the privacy and dignity of victims must be protected, the court noted it had previously ruled that videos of the offenses be displayed on a screen visible only to the jury, the court and the parties. The court then held that while media access to trials is critical to keeping the public informed, there is no First Amendment right to have sketch artists in the room. Finding that the CVRA proscribed “all forms of identification of the victims in this case,” the court ordered that a single sketch artist could attend, but s/he “shall not sketch jurors or victims” and “[d]uring each victim’s appearance, no sketching materials of any kind will be visible d at *4. in the courtroom.” Id. Definition of Crime Victim – 18 U.S.C. § 3771(e) () United States v. Guevara-Toloso, 2005 WL 1210982 (E.D.N.Y. May 23, 2005). The court, sua sponte, raised the issue of whether the victim’s right to be notified of proceedings applied to a victim of a state offense that the defendant was previously convicted of and which was serving as an element of the current federal offense. The court stated that the CVRA’s “reference to ‘the crime’ . . . suggests a focus only on the crime with which a defendant is charged in the case in which a victim seeks to assert her statutory rights.” Id. d at *2. The court concluded that the CVRA’s provisions do not require notice to victims of a predicate state offense. Conclusion

Above the entrance to the Supreme Court Building is engraved the motto “Equal Justice Under Law,” which was designed by Cass Gilbert. Above this motto is a group of nine figures, sculpted by Robert Aitken, representing Liberty Enthroned guarded by Order and Authority.

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It is too early to know the full impact of the CVRA or these cases on the criminal justice system. What we do know is that each decision, regardless of outcome, reveals the strengths and weaknesses of the CVRA and provides a roadmap for the continuing advancement of victims’ rights. While only time will reveal the true impact of the CVRA, the knowledge that comes case-by-case can help victims’ rights advocates nationwide.

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NCVLI CRIME VICTIM LITIGATION CLINIC

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ewis & Clark Law School’s Crime Victim Litigation Clinic, offered during fall and spring semesters and taught by NCVLI staff attorneys, continues to provide opportunities for law students to learn about crime victims’ rights and to research and write on cutting edge issues to assist lawyers representing crime victims nationwide. The purpose of the Clinic is to educate law students about the role of the crime victim and crime victim’s attorney in asserting individual rights in the criminal justice system from both a practical and theoretical perspective. The Clinic covers a variety of topics related to crime victims’ rights. This semester, five law students are researching and writing on issues of national significance to crime victims. Student projects this semester include: •

Writing a model brief and creating model legislation on how to best protect victims’ private images;

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Examining whether juvenile crime victims cti have the right to refuse to consent to medical cal examinations; and

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Researching the relationship between mandatory reporting laws and counseling privileges.

NCVLI will keep you posted on the progress of the amazing work of these talented law students and the future projects undertaken in the Clinic.

NATIONAL ALLIANCE OF VICTIMS’ RIGHTS ATTORNEYS Mission: NAVRA promotes the exchange of knowledge and resources to foster a national network of skilled attorneys to represent crime victims in the criminal justice system.

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ounded in 2002 as an association of NCVLI, NAVRA membership continues to grow and diversify. We approach the end of our third year with 238 members—129 attorneys, 6 law students, and 103 advocates/services providers—in 36 states. It’s been a good year for NAVRA: • Members gathered for the First Annual NAVRA event at the June 2005 Law & Litigation Conference in Portland, Oregon, for a celebration in honor of their dedication and commitment to the protection and enforcement of crime victims’ rights. • In early October, NAVRA members participated in a no-cost, members-only teleconference: Victims’

Attorneys, Advocates and Prosecutors - Working Together to Ensure Justice for Victims. • The listserv is up and running: attorney and law student members can share breaking news and events, and discuss issues relevant to crime victims’ rights with their colleagues. • NCVLI published and distributed quarterly Law Updates which summarize victims’ rights cases that were decided nationwide during each prior quarter. NAVRA will continue to offer members no-cost teleconference trainings and Annual Conference events and tuition discounts. Visit the NAVRA website, http://law.lclark.edu/org/ncvli/alliance.html, to join NAVRA, and for information on upcoming opportunities. “Yes, I am only one person. But I am one! If I am one, then I can do something. If I can do something, I should do something. . . . It is all about the Power of One.”

Fall 2006 Crime Victim Litigation Clinic: from the left, Rodney Perkins, 2nd yr; Scott Byrd, 3rd yr; Olivia Godinez, 3rd yr; Paul Shoen, 3rd yr. Not pictured: Fay Stetz-Waters, Dec. grad.

MERCY CORPS FOUNDER DAN O’NEILL, excerpted from his speech at The ONE Campaign rally in Seattle, WA on April 24, 2005. Page 17

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THE CRIME VICTIM’S RIGHT TO ATTEND TRIAL: THE REASCENDANT NATIONAL CONSENSUS by Douglas E. Beloof & Paul G. Cassell Excerpted and edited from an article of the same title, Douglas E. Beloof & Paul G. Cassell, 9 Lewis & Clark Law School 481 (2005), and reprinted with permission of the authors and journal. As co-author, Professor Cassell intends no comment on any pending cases or legal issues before him. Footnotes and many citations have been omitted and can be found in the published article.

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ore than forty states and federal jurisdictions recognize a victim’s right to attend a trial. While slightly more than half of these rights are qualified in some fashion, the qualifications are typically narrow and have not generally resulted in the exclusion of a victim. As a result, it seems safe to say that there is a reascendant national consensus that victims should have the right to attend criminal trials. This article identifies and discusses the right to attend and breaks down the discussion into four categories: 1) laws providing an unqualified right to attend; 2) laws providing a qualified right to attend; 3) the federal law on the right to attend; and 4) the right to attend in jurisdictions with no express right to attend. Unqualifi q ed Rights g to Attend Trial Seventeen states have conferred on victims an unqualified right to attend trial. The Michigan constitutional provision typifies such unqualified right, providing that crime victims have “[t]he right to attend trial and all other proceedings the accused has the right to attend.” MICH. CONST. art. I, § 24. Like Michigan, many states give victims a right to attend proceedings in a manner tied to the accused’s right to attend. Given that the accused has a virtually unlimited right to attend the trial, this formulation presumably gives victims an unqualified right to attend trial. Some states give victims an unqualified right to attend, but qualify the remedies available to enforce such right; for example, many states provide that a victim does not have the right to seek a new trial for violation of her rights. See, e.g., g UTAH CONST. art. I, § 28(b)(2). Qualified Rights g to Attend Trial. About twenty-five states have given victims a qualified right to attend. The rights promulgated by these states may be conveniently categorized into six groups, in roughly the order in which they protect victims. As detailed below, even though

these rights are qualified, in the vast majority of cases victims will have the right to attend trial. 1) The Right to Attend Subject to Exclusion

for Interference with Constitutional Rights.

the

Defendant’s

Six states give victims the right to attend trial, qualified by exclusion for interference with a defendant’s constitutional rights. Typical of these provisions is Florida’s, which provides: “Victims of crime or their lawful representative . . . are entitled to the right . . . to be present . . . at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.” FLA. CONST. art. I, § 16(b). Such provisions give victims a very strong right to attend trial because it is unlikely that the defendant will be able to establish a violation of his rights from a victim attending trial. It is worth noting here that only one reported case has seemingly found a problem with allowing a victim to attend the trial under such a statute. See State v. Heath, 957 P.2d 449, 471 (Kan. 1998). 2) The Right to Attend Subject to Exclusion

if Necessary to Protect a Defendant’s Fair Trial Rights. Six states give victims the right to attend trials subject to exclusion if necessary to protect a defendant’s “fair trial” rights. For example, Ohio gives a victim a right to be present “whenever the defendant . . . in the case is present during any stage of the case against the defendant . . . that is conducted on the record, other than a grand jury proceeding, unless the court determines that exclusion of the victim is necessary to protect the defendant’s . . . right to a fair trial . . . .” OHIO REV. CODE ANN. § 2930.09 (West 2005). The reference to “fair trial” rights appears to be a reference to the federal constitutional right to a fair (continued on next page)

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4) The Right to Attend “If Practicable.” trial. The United States Supreme Court explained that “[t]he right to a fair trial is a fundamental liberty” guaranteed by the Due Process Clause of the Fifth Amendment. Estelle v. Williams, 425 U.S. 501, 503 (1976). A fair trial is “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, the Due Process Clause “always protects defendants against fundamentally unfair treatment by the government in criminal proceedings.” Doggett v. United States, 505 U.S. 647, 666 (1992) (Thomas, J., dissenting). There are certain “basic components” in the due process right to a fair trial, including, for example, the right to a presumption of innocence. Estelle, 425 U.S. at 503. Circumstances in which a defendant’s fair trial rights would be implicated by a victim attending trial would be rare indeed and, in our view, nonexistent. We have been unable to locate any cases from these six states finding that a defendant’s fair trial rights were impinged from a victim attending trial. 3) The Right to Attend Unless Testimony is Affected. Five states and the District of Columbia give victims the right to attend trials unless the court finds that their testimony would be affected. Most of these states give extremely strong protection to a victim’s right to attend. For instance, Connecticut, Illinois, Massachusetts, and Texas, joined by the District of Columbia, all require that a court find that a victim’s testimony “would be materially affected.” This standard is strongly protective of victims for two reasons. First, the court is not permitted to engage in speculation about whether a victim’s testimony might be affected by attending the trial. Rather, the standard is that a victim’s testimony “would be” affected. Second, not only must the court find an actual effect on testimony, but that effect must be “material.” A “material” effect is conventionally understood to be an effect that is significant or essential. BLACK’S LAW DICTIONARY 991 (8th ed. 1999). In light of these stringent requirements, it is unsurprising that no reported decision has yet concluded that a victim’s testimony “would be materially affected” from attending a trial.

Two states give victims the right to attend where practicable. Maryland provides that “a victim of crime shall have . . . the right to . . . if practicable . . . attend . . . a criminal justice proceeding. . . .” MD. CONST. Decl. of Rights, art. 47. Similarly, North Carolina law provides that “the court shall make every effort to permit the fullest attendance possible by the victim in the proceedings.” N.C. GEN. STAT. § 15A-832(e) (2005). These provisions appear to give victims a very strong right to attend by essentially creating a presumption in favor of victim attendance. Legislative history and case law state this presumption. See, e.g., Wheeler v. State, 596 A.2d 78, 87 (Md. 1991). 5) The Right to Attend Subject to the Discretion

of the Court. Another group of five states gives victims the right to attend in the discretion of the court. Set forth below are the three constitutional examples of this right. • Georgia: “The victim of a criminal offense may be entitled to be present in any court exercising jurisdiction over such offense. It shall be within the sole discretion of the judge to implement the provisions of this Code section and determine when to allow such victim to be present . . . and . . . to determine the order in which the testimony of such victim shall be given.” GA. CODE ANN. § 24-9-61.1. • New Jersey: A “victim of a crime shall not be denied the right to be present at public judicial proceedings except when, prior to completing testimony as a witness, the victim is properly sequestered in accordance with law or Rules Governing the Courts of the State of New Jersey . . . .” N.J. CONST. art. I, ¶ 22. In turn, the court rule provides that “[a]t the request of a party or on the court’s own motion, the court may, in accordance with law, enter an order sequestering witnesses.” N.J. R. EVID. 615. (continued on page 20)

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• Washington: “Upon notifying the prosecuting attorney, a victim of a crime charged as a felony shall have the right to be informed of and, subject to the discretion of the individual presiding over the trial or court proceedings, attend trial and all other court proceedings the defendant has the right to attend . . . .” WASH. CONST. art. I, § 35. This right is further implemented by the requirement that a court make a “reasonable effort . . . to ensure that victims . . . be physically present in court during trial or, if subpoenaed to testify, to be scheduled as early as practical in the proceedings in order to be physically present during trial after testifying and not to be excluded solely because they have testified.” WASH. REV. CODE. § 7.69.03 (2005).

(CVRA), 18 U.S.C. § 3771, provides that victims have the right to attend a proceeding “unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard any other testimony at that proceeding.” The legislative history of the CVRA provides for “allow[ing] crime victims in the vast majority of cases to attend the hearings and trial of the case involving their victimization. This is so important because crime victims share an interest with the government in seeing that justice is done in a criminal case . . . .” 150 CONG. REC. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl). Under this new statute it will be virtually unheard of for the victim to be excluded from trial. Jurisdictions With No Express p Right g To Attend

Under each of these provisions, we would assume that courts will virtually always exercise discretion to allow a victim to attend a trial. Only one reported case appears to have analyzed a discretion-ofthe-court provision. A Wyoming Supreme Court decision affirmed a trial court’s decision to admit a victim at trial, briefly noting that the victim had given a lengthy pre-trial statement and would be the first witness called in the case. See Gabriel v. State, 925 P.2d 234, 236 (Wyo. 1996). 6) The Right to Attend after Testifying. Finally, in a category by itself, there is Vermont in which a victim “shall be entitled to be present during all proceedings subject to the provisions of Rule 615 of the Vermont Rules of Evidence.” VT. STAT. ANN. tit. XIII, § 5309 (2003). In 1989, the Vermont rule was amended to include a provision designed to improve access for crime victims: “however, the witness may remain in the courtroom, even if the witness subsequently may be called upon by the other party or recalled in rebuttal, unless a party shows good cause for the witness to be excluded.” Vt. R. EVID. 615. Federal Law Federal Rule of Evidence 615 provides that “a person authorized by statute to be present cannot be excluded.” The Recent Crime Victims’ Rights Act Page 20

It is worth remembering that even in states without a victim’s right to attend trial, victims still may be admitted where their presence is essential to the prosecution. Contrary to the position suggested by some opponents of victim attendance, sequestration has no corner on the market of truthfinding. As the Justice Department has concluded: “the presence of victims in the courtroom can be a positive force in furthering the truth-finding process by alerting prosecutors to misrepresentations in the testimony of other witnesses.” Furthermore, there are ample ways to respond to testimony tailoring – crossexamination foremost among them – while there is no other way to convey a victim’s information to a prosecutor other than having the victim at hand attending trial. If anything, the search for truth demands that victims be allowed in the courtroom rather than kept outside. Conclusion In recent years, victims’ right to attend trials is reascendant around the country, as most states and Congress have recognized that victims have compelling reasons for being inside rather than outside courtrooms. Nothing in the Constitution should hinder this trend. To the contrary, as a simple matter of fairness, victims deserve the right to see whether justice is being done in the criminal trial of their victimizer.

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NCVLI’S 4TH ANNUAL L AW & LITIGATION CONFERENCE A LEGAL SYMPHONY: INSTRUMENTS OF LEGAL ADVOCACY

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ore than 100 crime victims’ rights attorneys, advocates, and allied professionals attended the June 2005 Conference. Participants chose from a spectrum of workshops on such diverse crime victims’ rights issues as the new federal Crime Victims’ Rights Act, Restitution, The Unique Needs of Sexual Assault Victims, Crime Victims and the Media, Confidentiality, Understanding Trauma Survivors, and the Use of DNA in Sexual Assault and Cold Cases. “So many workshops, so little time . . . .”

The Honorable John W. Gillis, Director of the U.S. Department of Justice Office for Victims of Crime, opened the Conference with a tribute to the leaders of the crime victims’ rights movement. Mr. Gillis’s work is “not only for crime victims’ rights, but also for full acknowledgement and respect for (victims’) dignity and humanity.” Mr. Gillis praised the passage of the Justice for All Act, saying that it “gives victims in the federal system unprecedented access to the process of justice.” Mr. Gillis closed his comments by thanking those assembled for their dedication and ground-breaking efforts, and for making a real difference in the lives of victims. “Every presenter was excellent.”

Other Conference speakers included nationally recognized experts in crime victims’ rights, such as the Honorable Paul G. Cassell, Federal District Court Judge for the District of Utah, who represented the Oklahoma City Bombing victims; Collene Campbell, National Chair of FORCE 100; Steve Twist, founder and president of Arizona Voice for Victims; Norman S. Early, founder of the National Black Prosecutors Association and former Denver District Attorney;

Phyllis Barkhurst, Executive Director of the Oregon Attorney General’s Sexual Assault Prevention Task Force; Ellen Goldberg, CARES NW Family Support Team; and victims’ rights attorneys from the Arizona, California, Maryland, New Jersey, New Mexico, and South Carolina clinics of the State & Federal Clinics and System Demonstration Project. “It was wonderful recharging the batteries . . . .” “Great conference, wonderful experience . . . .” “Great, necessary, interesting conference.”

The Conference brought together key people from across the country to both learn from each other and work together to develop the tools necessary to reform the criminal justice system and advance victims’ rights. Among the Conference’s many highlights was the presentation of NCVLI service awards, recognizing attorneys, advocates, and organizations that have made significant contributions to the enhancement of crime victims’ status and standing within the criminal justice system. This year’s awards were presented to:

• Honorable Paul G. Cassell Legal Advocacy Award for outstanding legal service to Oklahoma City Bombing Victims • (The late) Judge William Keys Service Award for his lifelong commitment to crime victims’ rights • Kathy Skaggs, Esq. Lifetime Achievement Award for Victim Advocacy For biographical information on this year’s awardees, please visit the 2005 Conference webpage: http://www. lclark.edu/org/ncvli/2005conwrap.html.

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Inspiring this edition of the NCVLI News and the theme for the 2006 Law & Litigation Conference, Kathy Skaggs’ poem celebrates the power of one to change the world. The Difference One Person Makes by Kathy Skaggs One person gave birth to me. One person held me on his lap, taught me my ABCs, how to count to 100 and back to zero. One person loved me like my father did. One person was my first grade teacher who taught me to want to be somebody--important like her. One person encouraged me to go to the best law school I could get into, and helped me get a scholarship to pay for it. One person sat next to me the first day of law school and befriended me the next 20 years. One person was with me when the doctor said it’s cancer and one person stood beside me with her hands on my arms during the bone marrow biopsy. One person left a hundred-dollar bill under a stack of clean towels on my kitchen table when I needed money. One person sent me emails when I decided to quit my job to write, that said, You can do this! You can! You can! You will! You will! One person gave me my house in Kentucky so I’ll always have a home no matter how far I roam. And one person has known more of me than any other person and loved me for it all. One person took the time yesterday to find just the right vein for the IV so I only got stuck once and it didn’t hurt, much. And one little girl got all excited to see the planes at the airport today, and wanted to pull her pink rolling travel bag all by herself, and that one little girl made all the passengers waiting for their delayed plane smile. Each of my sons is one person and each of them has brought joy and love to my life each in his own way. Each of us is one person. Each of us has the power to change the world. Each one of us has the opportunity to promote justice to share love to show compassion to speak the truth. Each one of us is one person to some one other person every day. Each of us has a chance every day to be that one person the one who makes all the difference.

Kathy Skaggs received the NCVLI Lifetime Achievement Award for Victim Advocacy. Photo courtesy of Tana Mills.

© 2005 by Kathy Skaggs. All rights reserved. Reprinted with permission of the author.

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A VICTIM’S STORY Sgt. Bill Blake grew up knowing that he would help his community, the Native American Red Lake Nation of Minnesota; he didn’t know that he would be launched into action by the words of his daughter, Erica Rae Blake: “You can do more, Dad.” He has honored Erica’s memory by spearheading a program to establish public safety, especially related to gang issues, without compromising tribal sovereignty. Sgt. Blake is developing a structure for an exchange of information among federal, state, local and tribal entities, that will be replicable nationally. Although Sgt. Blake did not expect to find himself in the spotlight, he recognizes that he can leverage the tragedy of his daughter’s death to relieve gang tensions both on and off reservation. Contact Sgt. Bill Blake at 612-9198070 or william.blake@ci.minneapolis.mn.us. His story, told below, illustrates the power of one.

Bill Blake, a Minneapolis police sergeant who is a member of the Red Lake Nation, took an early interest in preventing violence among Indians, making presentations to officers and students across the Midwest about gang problems that cut across all races. Then came that Tuesday in February 2003. His eldest daughter, Erica Rae Blake, a 20-year-old college student studying to become a social worker, was at a house party on a reservation in Wisconsin. As she came down the stairs, a teenager shot her in the head with a gun he didn’t know was loaded. Gang members lived in the house, but the shooting was ruled an accident and the man with the gun got a year in jail, according to court documents. For about the past year, Blake has worked on a project to honor his daughter’s memory: Minnesota’s first Native American Law Enforcement Summit. The two-day conference, starting Tuesday (September 20) in Hinckley, will provide training for 125 law enforcers and lawyers on issues ranging from Indian prison gangs to substance abuse. The overriding goal is to improve relationships between tribal and non-tribal officers and slow down the crime that cycles between urban and reservation populations. “Native American law enforcement can better serve the communities in which they work by

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having a better exchange of information about who is committing crimes,” said U.S. Attorney Tom Heffelfinger, who will speak at the summit. “The only way to effectively reduce crime is to coordinate this effort.” Blake, 41, had to see through some dark days before he could even contemplate that Heffelfinger and other top officials would be weighing in about the importance of his fledgling idea. While he received backing from (Minneapolis) Chief Bill McManus, Blake said some officers accused him of only doing the summit for a promotion. Tribal officers told him they should be planning such an event, not a city cop. “One officer was afraid we’d put our families at risk because people in the community would be angry,” Blake said. “Doing nothing will get your family killed. To not address the situation is irresponsible.” He went to Bill Means, a longtime Indian activist, who welcomed the summit and sees it as a chance to solve criminal problems involving the Little Earth housing complex in south Minneapolis. Means and Little Earth residents had been concerned about American Indians committing crimes in Minneapolis and hiding out on reservations or taking their criminal activities to the reservations. Blake said he hopes to set up a website at his department for all law enforcement with information about American Indian gang members, crime alerts and contacts that help tribal officers find the right officer in the Twin Cities to track a suspect or get information. Sgt. Herb Fineday of the Fond du Lac Tribal Police Department near Cloquet would welcome such a tool. “In the past, you may discover through investigation that a suspect or witness fled to Minneapolis or St. Paul. It may take a series of calls before you find that person three or four days later,” he said. The summit “is great for tribal law enforcement, who don’t get a lot of [training] opportunities like this because of lack of resources,” said Bernard Zapor, special agent in charge of the Bureau of Alcohol, Tobacco, Firearms and Explosives in Minnesota. ((continued on back cover)

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“She wanted to work with Indian kids in crisis,” he said. “Even though she’s not here, she will be able to help people.” ‘Able to help’ The way the summit has fallen into place makes Blake believe Erica Rae must have been helping him, he said. “She wanted to work with Indian kids in crisis,” he said. “Even though she’s not here, she will be able to help people.” The stories about his first-born child flow easily. There was the drive back from Fond du Lac Community College with his daughter in 1999. Blake had given his presentation and they talked about the emergence of drugs, violence and gangs on reservations. “’You know, Dad, you have to do more,’ “ Blake said she told him. “I thought I was already doing enough being a parent, cop and presenter.” While he worked nights, Erica Rae went to live with his parents in Sheyenne, N.D. In high school, she became a cheerleader and was on the varsity volleyball and track teams. It wouldn’t be too long before she made Blake a grandfather to Isaiah.

Nationall Crime Victim Law Institute at Lewis & Clark Law School 10015 SW Terwilliger g Boulevard Portland,, OR 97219 www.ncvli.org

She went to live with her mother on the St. Croix Indian Reservation, where she attended college. Blake’s brother had to deliver the news of her accidental death. The officer found it hard to ignore the swirling rumors: maybe his daughter was actually targeted because she was a cop’s daughter. Gang members lived in the house, but Erica Rae had known some of them since childhood, he said. He had Minneapolis homicide investigators review her case, and they also determined her death was an accident. Isaiah, “who is a good boy,” is going to hear a lot about the mother he had for only six months, Blake said. Erica Rae would go to the health club with him and could bench press 150 pounds, and she favored music by the Dixie Chicks, Garbage and Sheryl Crow, he said. Blake misses the runs around Como Lake and her outgoing, sometimes rebellious personality. “Erica is my passion and drive,” he said. “I miss her terribly.” © David Chanen, Star Tribune September 19, 2005, all rights reserved Reprinted with permission of the author, the Star Tribune, and Sgt. Bill Blake

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